This post analyses the Supreme Court’s attempt to reconcile its dominant liberalism/individualism based approach towards fundamental rights as against the group right claims under Article 26, in the recent Sabarimala verdict.

In this post I am analysing how the Supreme Court has attempted to reconcile its dominant liberalism/individualism based approach towards fundamental rights as against the group right claims under Article 26, in the recent Sabarimala verdict. For every group which claims rights under Article 26, the Constitution provides an external protection from non-interference with its autonomy and self-determination. The boundaries of this protection is defined by the right that is sought to be enforced against this protection, which in the present context is the right of entry that the women claims. In other words, the relative importance of the right which is sought to be enforced in a specific context shall determine whether any interference can be made within this sphere of protection or not. Inside the sphere, the necessary autonomy to practice and to self identify themselves is a logical corollary of such non-interference. Without this autonomy the rights provided under Article 26 for religious groups will be rendered meaningless. Therefore, for interpretation of the term ‘religious denomination’, it assumes importance on how the court has treated the self-identification claims of a denomination in this judgment.

Of Compartmentalization

Of the majority opinions, both Dipak Misra J. and Nariman J. prefers a rigid interpretation of the term ‘Ayyappans’ by boxing it the within the overarching definition of Hinduism. Agreeing with the past precedents, both Misra J. and Nariman J. identifies the constitutive criteria to form a ‘religious denomination’ as 1) a common faith 2) a common organization 3) a distinctive name. One can easily notice that all the three criteria seek to level an all-encompassing uniformity to a denomination in order to accord the protective umbrella of Article 26.

The problem that arises with this interpretation is the arbitrary treatment of a possible alternative norm that seeks independent protection under Part III of the Constitution. Here, the ‘Ayyappans’, who claim to be a separate denomination, are denied the right of self-determination. The opinions of Misra J. and Nariman J. reject the argument that though people from various religion participate in the process of ‘vratham’, they all come together for the process under a common belief on the celibacy of Lord Ayyappa. They do not accept that the Ayyappans can simultaneously practice the ‘vratham’ while belonging to a different religion. More specifically in this context, Nariman J., notes a similar argument made in the Auroville case that a person who is a member of the denomination, should belong to the religion professed by the denomination and should give up his previous religion. However, he does not return any conclusion on this argument (Paragraph 14 Nariman J.).

This rejection is an overt emphasis on a mutually exclusive compartmentalization of social groups. It is an unimaginative interpretation in the sense that such social groups should be sufficiently permeable with freedom for an individual to move freely between them, rather than the court assigning one to them through the exercise of identifying a ‘religious denomination’. With this, however, the elements of shared identity and contextual claim of a religious identity stands rejected in one fell swoop. This comes out as a strenuous attempt for a secular reconstruction of the social order. Besides, such judicial homogenization of legal orders would have an adverse impact over the important plural character that the Constitution seeks to preserve.

A Common Thread

In addition to the three determinative factors to form a religious denomination, the opinion of Chandrachud J. identifies the common set of religious tenets as fourth criteria. Rejecting other factors such as Caste, community and social status, his opinion says that the common thread that connects the other three criteria is the religion itself (Paragraph 63). A separate and distinctive religious identity, as per Chandrachud J. forms the fundamental character of a religious denomination (Paragraph 64). Extrapolating these requirements to test whether the ‘Ayyappans’ pass the muster or not, he identifies that ‘pilgrims of all religions participate in the pilgrimage on an equal footing. Muslims and Christians undertake the pilgrimage. A member of any religion can be a part of the collective of individuals who worship Lord Ayyappa.’ Since religion is not the basis of the collective of individuals who worship the deity, he refuses to identify them as a separate religious denomination. What this reasoning fails to take into consideration is the possibility of an overlapping membership of an individual amongst completely different religious denomination. The fundamental requisite here is to confer a common right of entry to women, which the court can do by construing the powers of the state to do it, irrespective of whether the said group of people fall under the category of that particular religious denomination or not. It is not necessary to define the denomination per se. The necessity to define a religious denomination will not arise when one accepts the possibility of an individual simultaneously practising different religions. So the only question that will be left to be addressed is to contextually balancing the rights. In fact, the opinion of Chandrachud J. does precisely this by effectively balancing the conflicting claims of women seeking entry, under Article 14 amongst other provisions, as against the rights of the ‘Ayyappans’ under Article 26.

Of Contextual and Overlapping Memberships

The dissent by Indu Malhotra J., effectively takes the same set of facts and arguments made by the supporters of the ban on entry of women, and arrives at a conclusion that is diametrically opposite to the one by the majority. While the plural opinions of the majority find the mere fact that the religious practises being followed in this Temple, on the belief that the Lord has manifested himself in the form of a ‘Naishtika Brahmachari’ do not form an identifiable set of beliefs, customs and usages, the dissent finds that the practises followed by this religious denomination qualifies to be identified as one.

In addition, in contrast to the majority, Malhotra J. opinion furthers the argument about the overlapping memberships:

“The contention of the Petitioners that since the visitors to the temple are not only from the Hindu religion, but also from other religions, the worshippers of this Temple would not constitute a separate religious sect.

This argument does not hold water since it is not uncommon for persons from different religious faiths to visit shrines of other religions. This by itself would not take away the right of the worshippers of this Temple who may constitute a religious denomination, or sect thereof.” (Paragraph 12.12)

It is refreshing to see that this opinion transcends beyond the rigid interpretation and approves heterodoxy within the constitutional legal order. The opinion of the majority, however, has constrained itself within the past precedents that has favoured more rigid judicially administered standards of identification for a religious denomination. Curiously, however, Malhotra J. additionally holds that the question of whether the claimants are a religious denomination or not is mixed question of law and fact. It is held that it would be more appropriately determined by a civil court, where both parties are given the opportunity of leading evidence to establish their case (Paragraph 16(iv) Malhotra J.). It is rarely that the Supreme Court has shied away from exercising its powers in such cases.


The group rights for self-identification are not always inconsistent with individual freedom, since they are always contextual. What the constitution seeks to preserve through these provisions is multiculturalism in the society by extending protection to groups to preserve their way of life. This comes out best in the dissenting opinion in the following words:

The Constitution ensures a place for diverse religions, creeds, denominations and sects thereof to co-exist in a secular society. It is necessary that the term ‘religious denomination’ should receive an interpretation which is in furtherance of the Constitutional object of a pluralistic society.” (Paragraph 12.13)

Therefore, the tests that are designed should reasonably provide seekers the opportunity to identify themselves in a manner that they see fit. Importantly, it should also provide sufficient latitude for an overlapping membership/understanding of the term ‘religious denomination’ since an individual can simultaneously seek to follow the precepts of different religions with a hybrid understanding.

The standards of satisfaction that the majority has used to identify a ‘religious denomination’ under Article 26, rather than protecting such autonomous rights, tends to accommodate its seekers within the existing paradigm that is designed by the judiciary itself. Counter-intuitively, by preventing a fluid understanding of religious self-identification, this interpretation of the Constitution in fact restricts another facet of individual centric freedoms that the majority opinion seeks to further. This happens due to the restriction of individual agency of choice by the judicially dictated arbitrary standards of satisfaction to claim rights and protection. The present set of standards to qualify as a religious denomination does not consider that the religious rights are not only about protecting the civil liberties of individuals, but are also protecting the autonomy of individuals within a social group.

Written by
Vivek Anandh
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